Dismissal – Security Procedure Breach and the Balance of Probabilities
Jonathan Goldberg- May 7
- 2 min read
Updated: 2 days ago
In the matter of ASSOCIATION OF MINEWORKERS AND CONSTRUCTION WORKERS UNION (AMCU) V CCMA AND OTHERS (JR2132/21) [2024] ZALCJHB 139 (18 MARCH 2024), an employee working at a manganese mining company was dismissed after being caught violating strict security rules at the mine. The employer, due to the high value of manganese, had detailed policies in place to prevent theft, including mandatory searches of employee bags when leaving the premises. The employee, who had been with the company as a support worker, refused to have his backpack searched and left the mine without authorisation.
CCTV footage captured the employee's movements as he left with a heavy backpack, despite the company's clear rule requiring bag searches at the shaft exit. The footage showed the employee visiting the security room before grabbing his bag and attempting to leave the premises. When the security guard briefly turned away to call the control room, the employee quickly exited the gate and approached a waiting vehicle, which sped off from the premises.
The employee was later charged with breaching security procedures and unauthorised possession of manganese. At his disciplinary hearing, he was dismissed. The employee referred his case to the Commission for Conciliation, Mediation, and Arbitration (CCMA), alleging unfair dismissal. The CCMA Arbitrator, however, found that the dismissal was fair, rejecting the employee's explanations and defences as false.
The Arbitrator concluded that the rule about bag searches was valid, reasonable, and consistently enforced. The only question was whether the employee had violated this rule, which was clearly established through the CCTV footage. During the hearing, the employee’s union, AMCU, attempted to argue that dismissal was an excessive sanction.
However, the focus shifted to whether the rule had been broken, which the evidence strongly supported.
The employee's defence was that he left work early with permission from his supervisor, but he failed to provide any witnesses to confirm this. Furthermore, his behaviour, such as visiting the security room before leaving, refusing to allow his bag to be searched, and leaving hastily, raised further suspicion. His claim that the bag only contained a lunch box and water bottle was not convincing, given its size and weight.
The Arbitrator concluded that the most plausible explanation was that the employee was in unauthorised possession of manganese, making his dismissal justified
In these circumstances, direct evidence about the breakdown in the trust relationship was not necessary to substantiate dismissal as a fair sanction.
The Labour Court reviewing the case upheld the Arbitrator’s decision, dismissing the review application. It was ruled that the nature of the misconduct warranted dismissal, even without direct evidence about the breakdown of trust between the employer and employee.
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